Plenary sitting ADDENDUM. to the report. Committee on Employment and Social Affairs. Rapporteur: Marita Ulvskog A8-0064/2017

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1 European Parliament Plenary sitting A8-0064/207/err02 ADDDUM to the report on the proposal for a directive of the European Parliament and of the Council amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (COM(206)0248 C8-08/ /030(COD)) Committee on Employment and Social Affairs Rapporteur: Marita Ulvskog A8-0064/207 After the explanatory statement, insert the following opinion: OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ON THE LEGAL BASIS Mr Thomas Händel Chair Committee on Employment and Social Affairs BRUSSELS Subject: Opinion on the legal basis on the Proposal for a Directive of the European Parliament and of the Council amending Directive 2004/37/EC on the protection of workers from the risks related to exposure to carcinogens or mutagens at work (COM(206)0248 C8-08/ /030(COD)) RR\9702.docx PE v02-00 In verscheidenheid verenigd

2 Dear Mr Chair, By letter of 2 June 207 you asked the Committee on Legal Affairs, pursuant to Rule 39 of Parliament s Rules of Procedure, to consider the appropriateness of the change of the legal basis requested by the Council for the above-mentioned proposal. The legal basis proposed by the Commission is Article 53(2) of the Treaty on the Functioning of the European Union (TFEU). The Commission also relies on secondary EU law, namely Article 7() of Directive 2004/37/EC 2 on the protection of workers from the risks related to exposure of carcinogens or mutagens at work, namely the Directive that the said Proposal seeks to amend. This legal basis was unchanged in the EMPL report on this proposal. 3 However, the Council general approach changes the legal basis by adding to the existing Article 53(2) TFEU a reference to its point (b) as well as to Article 53()(a) TFEU and by deleting the reference to Article 7() of the Carcinogens Directive. The committee considered this issue at its meeting of 20 June 207. I - Background The proposal aims at improving workers health protection by reducing occupational exposure to carcinogenic chemical agents, increasing the effectiveness of the EU legislation in this area and at providing more clarity and a better level playing field for economic operators. It is among the priority actions identified in the Commission Work Programme for 206. Estimates of the recent and future burden of occupational diseases indicate that work-related cancer is a problem and will remain so in the future as a result of exposure of workers to carcinogens. Cancer is the first cause of work-related deaths in the EU. Annually, 53 % of occupational deaths are attributed to cancer, compared with 28% for circulatory diseases and 6% for respiratory diseases. 4 Accordingly, the proposal revises and/or introduces exposure limit values for 3 chemical substances, introducing three specific measures, namely: - a broadened Annex I to include 'work involving exposure to respirable crystalline silica dust generated' and to establish an exposure limit value for this carcinogen in Annex III; - exposure limit values for 0 additional carcinogens in Annex III and - a revision of the existing exposure limit values for hardwood dusts and vinyl chloride monomer with regard to the newest scientific data. II - Relevant Treaty Articles The following Article of the Treaty on the Functioning of the European Union, under Title X on 'Social Policy' of Part Three of the TFEU, entitled Union Policies and Internal Actions, is presented as the legal basis in the Commission proposal (emphasis added): COM(206)248 final of 3 May OJ L 58, , p See A8-0064/ European estimates of work-related injury and ill health, Work-related Illnesses Identification, Causal Factors and Prevention Safe Work Healthy Work For Life, Takala, J., Workplace Safety and Health Institute, Singapore, presentation to EU Presidency Conference, Athens, June 204. PE v /8 RR\9702.docx

3 Article 53 (ex Article 37 TEC). [...] 2. To this end, the European Parliament and the Council: (a) may adopt measures designed to encourage cooperation between Member States through initiatives aimed at improving knowledge, developing exchanges of information and best practices, promoting innovative approaches and evaluating experiences, excluding any harmonisation of the laws and regulations of the Member States; (b) may adopt, in the fields referred to in paragraph (a) to (i), by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States. Such directives shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings. The European Parliament and the Council shall act in accordance with the ordinary legislative procedure after consulting the Economic and Social Committee and the Committee of the Regions. In the fields referred to in paragraph (c), (d), (f) and (g), the Council shall act unanimously, in accordance with a special legislative procedure, after consulting the European Parliament and the said Committees. The Council, acting unanimously on a proposal from the Commission, after consulting the European Parliament, may decide to render the ordinary legislative procedure applicable to paragraph (d), (f) and (g). III - The proposed legal basis The Council general approach proposes to amend the legal basis of the proposal by adding to the existing Article 53(2) TFEU a reference to point (b) as well as to Article 53(), point (a) and by deleting the reference to Article 7() of the Carcinogens Directive. The new provisions read as follows (emphasis added): Article 53 () (ex Article 37() TEC). With a view to achieving the objectives of Article 5, the Union shall support and complement the activities of the Member States in the following fields: (a) improvement in particular of the working environment to protect workers' health and safety; (b) working conditions; (c) social security and social protection of workers; RR\9702.docx 3/8 PE v02-00

4 (d) protection of workers where their employment contract is terminated; (e) the information and consultation of workers; (f) representation and collective defence of the interests of workers and employers, including codetermination, subject to paragraph 5; (g) conditions of employment for third-country nationals legally residing in Union territory; (h) the integration of persons excluded from the labour market, without prejudice to Article 66; (i) equality between men and women with regard to labour market opportunities and treatment at work; (j) the combating of social exclusion; (k) the modernisation of social protection systems without prejudice to point (c). Article 5 TFEU has the following wording (emphasis added): Article 5 (ex Article 36 TEC) The Union and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 8 October 96 and in the 989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion. To this end the Union and the Member States shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the Union economy. They believe that such a development will ensue not only from the functioning of the internal market, which will favour the harmonisation of social systems, but also from the procedures provided for in the Treaties and from the approximation of provisions laid down by law, regulation or administrative action. Article 7() Directive 2004/37/EC Annexes I and III may be amended in accordance only with the procedure laid down in Article 37(2) of the Treaty (now Article 53(2) TFEU). IV - Case-Law It is settled case-law of the Court of Justice that "the choice of legal basis for a Community measure must rest on objective factors amenable to judicial review, which include in particular the aim and content of the measure". The choice of an incorrect legal basis may Case C-45/86, Commission v. Council (Generalised Tariff Preferences) [987] ECR 439, para. 5; Case C- 440/05 Commission v. Council [2007] E.C.R. I-9097; Case C-4/06 Commission v. Parliament and Council [2009] ECR I PE v /8 RR\9702.docx

5 therefore justify the annulment of the act in question. In this context, an institution s wish for more active participation in the adoption of a given measure, the circumstances in which a measure was adopted as well as the work that has been done in other aspects within the scope of action covered by a given measure are irrelevant for the identification of the right legal basis. If examination of a measure reveals that it pursues a twofold purpose or that it has a twofold component one of which is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, that measure must be based on a single legal basis, namely that required by the main or predominant purpose or component. 2 However, where a measure has several contemporaneous objectives or components, which are indissociably linked, without one being secondary and indirect in relation to the other(s), such a measure will have to be based on the various corresponding legal bases, 3 if procedures laid down for the respective legal bases are not incompatible with and do not undermine the right of the European Parliament. 4 Article 53 TFEU (ex Article 37 TEC) constitutes the legal basis in the Treaty for the approximation of national legislation in the field of social policy. 5 Paragraphs () and (2) confer on the Union the power to support and complement the activities of the Member States with a view to achieving the objectives of Article 5 TFEU (ex Article 36 TEC) 6. V - Aim and Content of the proposal Recital of the proposal points out that Directive 2004/37/EC aims to protect workers against risks to their health and safety from exposure to carcinogens or mutagens at the workplace. For this purpose it lays down minimum requirements to that effect including limit values, on the basis of the available scientific and technical data. Recitals 2 and 3 state that the limit values should be revised when necessary in the light of scientific data, whereas alternative absorption pathways, including the possibility of penetration through the skin, also need to be considered for some carcinogens and mutagens to ensure the best possible level of protection. Recitals 5-7 specify the substances that could be classified as carcinogenic following latest scientific information as well as the already considered carcinogenic substances whose limit values should be revised in the light of more recent scientific data. Finally, recitals 8 and 22 reiterate that the aim of the proposed amendment of Directive 2004/37/EC is to strengthen the protection of workers' health at their workplace, improving their Case C-269/97 Commission v Council [2000] ECR I-2257, para Case C-37/2 Commission v Council EU:C:203:675, para. 53; C-490/0 Parliament v Council EU:C:202:525, para. 45; C-55/07 Parliament v Council [2008] ECR I-0803, para Case C-2/0 Commission v Council [2003] ECR I-0893, para. 40; Case C-78/03 Commission v European Parliament and Council [2006] ECR I-07, paras Case C-300/89 Commission v Council ("Titanium dioxide") [99] ECR I-2867, paras. 7-25; Case C-268/94 Portugal v Council [996] ECR I See Case C-343/08 European Commission v Czech Republic [200] ECR I-00275, para 67 with regard to the predecessor of Article 53, namely Article 37 TEC; See Opinion 2/9 Convention Nº 70 of the International Labour Organization concerning safety in the use of chemicals at work [993] ECR I-006, para 7. 6 See Case C-3/05 Sonia Chacón Navas v Eurest Colectividades SA [2006] ECR I-06467, para 4 with regards to the predecessor of Article 53, namely Article 37 TEC. RR\9702.docx 5/8 PE v02-00

6 living and working conditions and protecting them from the specific risks arising from exposure to carcinogens. Against this background, Article states that the Directive is amended through the addition in Annex I of a new entry 6 to include work involving exposure to respirable crystalline silica dust generated by a work process and through the replacement of Annex III by the text in the Annex to this proposed Directive. Articles 3 to 5 contain the usual provisions on transposition into the Member States national law. In particular, Article 4 refers to the date of entry into force of the Directive. VI - Analysis and determination of the appropriate legal basis It becomes clear from the above that the aim and content of the proposal is to strengthen the level of worker health protection in line with Article 53()(a) of the TFEU, by including in Annex I to Directive 2004/37/EC work involving exposure to respirable crystalline silica dust (respirable fraction) generated by a work process. This is achieved through the establishment of additional minimum requirements for workers health protection in the form of limit values in Annex III to the Directive, and the revision of the current limit values in Annex III for two carcinogens in the light of more recent scientific data. In this regard, it should be noted that Article 53(2) TFEU contains in effect, in points (a) and (b) respectively, two different legal bases for measures of very different nature. While point (a) of Article 53(2) refers to the adoption of measures designed to encourage cooperation between Member States, point (b) empowers Parliament and the Council to adopt in the fields referred to in paragraph (a) to (i), by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States. The proposed directive falls clearly within this latter category of measures, hence the reference to point (b) of Article 53(2) in the legal basis is a useful specification in the current circumstances. In addition, Article 53(2), which is the usual legal basis for adopting social policy measures, provides for different legislative procedures depending on the field of Article 53() in which the measure envisaged will operate. The analysis of the aim and content of the Proposal shows that point (a) of Article 53() more aptly corresponds to the measures envisaged therein. As is apparent from its preamble, the Proposal shares the same objective as the Carcinogens Directive which it seeks to amend, i.e. to protect workers against risks to their health and safety, including the prevention of such risks, arising or likely to arise from exposure to carcinogens or mutagens at work. Likewise, the Proposal consists of amendments to Annexes I and III to the Carcinogens Directive, adding a new substance to the list of substances, mixtures and processes which are to be considered as carcinogens within the meaning of the Directive, as well as new limit values for occupational exposure to these substances. These amendments are clearly health protection measures to the benefit of workers. Pursuant to the second and third subparagraphs of Article 53(2), a special legislative procedure applies, with unanimity voting in Council, in the fields referred to in points (c), (d), (f) and (g) of Article 53(), while in all other fields referred to in Article 53() the ordinary See SJ-0445/6, p.3. PE v /8 RR\9702.docx

7 legislative procedure applies. Therefore, in order to indicate the legal basis in a manner that allows for determining both which procedure is applicable to the adoption and the required majority necessary in the Council, it is appropriate to give more detail than what the Commission had proposed, by indicating not only whether point (a) or (b) of Article 53(2) is being used, but also which fields among those referred to in Article 53() the co-legislators are acting upon. Unlike the first point (a) of the second paragraph of Article 53 TFEU, which does not entail any reference to specific fields of activity of Article 53() TFEU, Article 53(2)(b) TFEU does make such an explicit reference. As a result, Article 53(2)(b) TFEU does not constitute an adequate legal basis for the proposal and needs to be complemented by a reference to Article 53()(a) to render it sufficiently clear and precise. It follows that, in light of its aim and content, the Proposal squarely falls within the scope of the field of activity set out in point (a) of Article 53(), i.e. the improvement of the working environment to protect workers health and safety, and hence that point (a) of Article 53() may safely be added as a legal basis for the Proposal, in conjunction with point (b) of Article 53(2), thus providing for the ordinary legislative procedure. As regards the secondary law legal basis proposed by the Commission, i.e. Article 7() of the Carcinogens Directive, it should be observed that article 7() of the Carcinogens Directive provides that Annexes I and III may be amended in accordance only with the procedure laid down in Article 37(2) of the Treaty. It is therefore apparent from its very wording that Article 7() does not itself provide a legal basis for amending the Annexes concerned, since it merely refers to Article 37(2) TEC (now, Article 53(2) TFEU), which is the legal basis for the Directive. In other words, Article 7() amounts to a mere reminder of the fact that amendments to Annexes I and III require recourse to Article 53(2) TFEU and, therefore, to an ordinary legislative procedure. As Article 7() of the Directive refers to (current) Article 53(2) TFEU, and Article 53(2) TFEU is already specifically mentioned as the legal basis of the Proposal, there is no need to refer twice to the same provision. 2 VII - Conclusion and recommendation In light of the foregoing analysis, the changes to the legal basis of the Proposal envisaged by the Council appear to amount, as far as they concern the reference to Article 53 TFEU, to mere technical specifications, which are appropriate from a legal point of view. As regards the reference to Article 7() of the Carcinogens Directive, its deletion may be considered as the simple correction of a material error. At its meeting of 20 June 207 the Committee on Legal Affairs accordingly decided unanimously 3 to recommend that you add to Article 53(2) a reference to point (b) as well as to Article 53()(a) TFEU and that you delete the reference to Article 7() of the Ibid. 2 See SJ-0445/6, p.3. 3 The following were present for the final vote: Pavel Svoboda (Chair), Lidia Joanna Geringer de Oedenberg (Vice-Chair), Laura Ferrara (Vice-Chair), Mady Delvaux (Vice-Chair), Gerolf Annemans (for Gilles Lebreton, pursuant to Rule 200(2)), Max Andersson, Joëlle Bergeron, Rosa Estaràs Ferragut, Mary Honeyball, Sylvia- Yvonne Kaufmann, António Marinho e Pinto, Emil Radev, Julia Reda, Evelyn Regner, József Szájer, Mylène Troszczynski (for Marie-Christine Boutonnet, pursuant to Rule 200(2)), Axel Voss, Daniel Buda, Angel Dzhambazki, Angelika Niebler, Jens Rohde, Virginie Rozière, Tiemo Wölken, Kosma Złotowski. RR\9702.docx 7/8 PE v02-00

8 Carcinogens Directive from the legal basis of the proposed instrument. Yours sincerely, Pavel Svoboda (Affects all language versions.) PE v /8 RR\9702.docx

*** DRAFT RECOMMENDATION

*** DRAFT RECOMMENDATION European Parliament 2014-2019 Committee on Legal Affairs 2017/0039(APP) 27.9.2018 *** DRAFT RECOMMDATION on the draft Council regulation amending Regulation (EU) 216/2013 on the electronic publication